Eshun and Another v Amankwah (C5/201/2024) [2025] GHACC 105 (18 July 2025)

IN THE CIRCUIT COURT ‘1’ HELD IN ACCRA ON FRIDAY THE 18TH DAY OF JULY, 2025 BEFORE HER HONOUR CHRISTINA EYIAH-DONKOR CANN (MRS.), CIRCUIT COURT JUDGE SUIT NO: C5/201/2024 ADWOA NSEFUABA ESHUN TORONTO ONTARIO (SUING PER HER LAWFUL ATTORNEY) KWESI BADU ESHUN PETITIONER SSNIT FLATS BLK 4, 2ND FLOOR, ROOM 2 GA-562-5007. ACCRA VRS ROBERT AMANKWAH 310 NISIKA UNIT 212 RESPONDENT TORONTO ON, M3N 2S3 JUDGMENT INTRODUCTION The parties were married under the Marriage Ordinance on the 13th August, 2016 at the Saint Augustine Church, Dansoman, Accra. Whilst the petitioner is unemployed, the respondent is a cleaner/handyman in Canada. On the 20th March 2024, the petitioner filed a Petition for divorce and averred that the marriage has broken down beyond reconciliation and prayed the court for the following reliefs: “a) An order for the dissolution of the ordinance marriage contracted between the parties. 1 b) An order for the Petitioner to be granted custody of the issues of the marriage with reasonable access to the Respondent. c) An order for the Respondent to maintain the issues of the marriage including but not limited to the payment of their school fees and medical bills.” Since this is a matrimonial cause, it is the direct provisions of the Matrimonial Causes Act, 1971 (Act 367) which should apply. Section 2 (2) of the Matrimonial Causes Act, 1971 (Act 367) provides that: “On a petition for divorce it shall be the duty of the court to inquire, so far as is reasonable, into facts alleged by the petitioner and the respondent.” The facts relied on by the parties must therefore be pleaded and placed before the court; otherwise, the court cannot perform its statutory duties under the above section of this Act. The particulars set out in detail the facts relied on by the petitioner and the respondent to establish the allegation that the marriage has broken down beyond reconciliation. The relevant particulars of the petitioner’s Petition are as follows: “7. That the Petitioner says that the marriage contracted between the parties has broken down beyond reconciliation due to the unreasonable behaviour of the Respondent towards her and their marriage at large. PARTICULARS OF UNREASONABLE BEHAVIOUR i. That Petitioner says Respondent has been an irresponsible husband/partner to the Petitioner and father to the issues of the marriage. ii. That for the major part of the marriage, Petitioner says that Respondent refuses to adequately provide for the maintenance and welfare of the children. 2 iii. That Petitioner says that the situation continued and Respondent continued to be irresponsible even after Petitioner and their children relocated to live with the Respondent in Canada. iv. That Petitioner says further that she has to sometimes involve the law enforcement agencies to compel the Respondent to provide for the issues of the marriage. v. That the Petitioner states that the Respondent would get verbally abusive every time she confronted him about his irresponsible behaviour. vi. That Petitioner says that the Respondent is disrespectful towards her and would often insult her in front of his friends and issues of the marriage. vii. That Petitioner states further that Respondent has no concern for her wellbeing and pays no attention to her when she falls ill. viii. That Petitioner says that the Respondent would often act very cold towards her and they barley communicated as husband and wife while they lived together. ix. That the Petitioner states that the Respondent would often start an argument on the least provocation which usually led her to her being assaulted.” SUMMARY OF EVIDENCE BY THE PETITIONER The petitioner testified through her lawful Attorney but did not call any witness. In several decided cases, the superior courts have held that there are situations where the testimony of a single witness will suffice to prove a case. In the case of Kru vrs Saoud Bros & Sons (1975) 1 GLR 46, the Court of Appeal held: “Judicial decisions depend on the intelligence and credit and not the multiplicity of witnesses produced at the trial.” Also, in the case of Takoradi Flour Mills vrs Samir Faris (2005-2006) SCGLR, the Supreme Court held affirming the position of the law that: “(a) A tribunal of facts can decide an issue on the evidence of one party. A bare assertion on oath by a single witness might in the proper circumstance of 3 a case be enough to form the basis of a judicial interpretation. The essential thing is that the witness is credible by the standard set in section 80 (2) of the Evidence Act, 1975.” Again, in the case of Ghana Ports and Harbours Authority vrs Captain Zavi & Nova Complex Ltd (2007-2008) SCGLR 806 the Supreme Court held thus: “It is true that witnesses are weighed but not counted and that a whole host of witnesses are not needed to prove a particular point.” The petitioner’s attorney tendered in evidence the power of attorney given to him by the petitioner and the marriage certificate as Exhibits “A” and “B” respectively. In this case, the respondent though duly served with the petitioner’s Petition, together with setting down cause for trial, the petitioner’s attorney’s witness statement and hearing notices of which services were duly proved, did not enter appearance or file his Answer to the petitioner’s Petition. Neither did he appear in court to either give evidence or cross-examine the petitioner. He is therefore deemed to have waived his right to be heard, although there is an authority to the effect that the right to be heard is an established common law principle, it is a right which should not be taken away unless the rules of court permit it to be so. See: Repubilc vrs High Court Exparte Salloum and Others (2012) 37 MLRG 34 SC. THE PETITIONER’S ATTORNEY’S CASE The petitioner’s attorney testified that the petitioner and the respondent got under the Marriage Ordinance on the 13th August, 2016 at the Saint Augustine Church, Dansoman, Accra, After the marriage, the petitioner lived with her mother at Gbawe, Accra while the respondent lived in Canada. According to the petitioner’s attorney, the petitioner joined the respondent in Canada together with their two (2) children of the marriage namely: Adriel Amankwah, seven years old and Adalia 4 Amankwah, four years old. It is further the evidence of the petitioner’s attorney that the petitioner informed him that the issues in their marriage began early in the marriage and that the respondent for the greater part of the marriage was ordinarily resident in Canada, while she lived with the children in Ghana. The petitioner’s attorney continued that even before the petitioner and the children joined the respondent in Canada, the respondent rarely maintained the children in Ghana. According to the petitioner’s attorney, the petitioner believed that the situation would improve once she joined the respondent in Canada with the children. However, according to the petitioner, even after relocating to Canada with the children to live with the respondent, he continued to be irresponsible and failed to provide adequately for the welfare and maintenance for the children. The petitioner’s attorney stated that on some occasions when the situation persisted for so long, she had to involve the law enforcement agencies to compel the respondent to cater for the needs of their children and the petitioner was greatly disturbed by the situation and confronted the respondent about his conduct on several occasions. It is also the case of the petitioner’s attorney that after sometime, the respondent became verbally abusive towards the petitioner, whenever she confronted him about his irresponsible behaviour towards herself and the children. The respondent on some occasions had also been highly disrespectful towards the petitioner and would insult her in front of their family and friends, and sometimes even in front of their children and also had no regard for her for the entire duration of the marriage and even when she fell ill. The petitioner’s attorney further stated that the parties barley communicate as husband and wife, as the respondent always acted cold towards the petitioner and on random occasions, he would argue with the petitioner over little things and would proceed to physically assault the petitioner at the least provocation. According to the petitioner’s attorney, the matrimonial home has become a hostile place for the petitioner to live with the children and the petitioner consequently decided to leave the matrimonial home with the children, in order to remove them from such a hostile environment which 5 was affecting their growth and even their performance at school. Since the petitioner vacated the matrimonial home with the children, the respondent has made no effort to see the children or provide for their needs leaving the petitioner to bear the burden of catering for the needs of the children, all by herself and this has caused the petitioner a lot of anxiety and stress in attempting to be the sole provider for the needs of the children, as the petitioner is currently unemployed. The petitioner and the respondent have not lived together as husband and wife for a continuous period of two (2) years and they have also not shared any form of intimacy whatsoever with each other and all attempts to resolve the differences between parties have proved futile. As far as the petitioner’s attorney is concerned, the marriage celebrated between the parties has broken down and the petitioner would never be reconciled with the respondent. The petitioner would not go back to the respondent and no more diligent efforts at reconciliation would succeed. The petitioner’s attorney also prayed the court to dissolve the marriage. FINDINGS OF PRIMARY FACTS From the evidence on the record, the following facts are not in dispute: 1. That the parties were married under the ordinance on the 13th August, 2016 at the Saint Augustine Church, Dansoman, Accra. 2. That the parties have two (2) issues in the marriage. ISSUE FOR DETERMINATION The main issue for determination is as follows: Whether or not the marriage contracted between Adwoa Nsefuaba Eshun, the petitioner herein and Robert Amankwah, the respondent herein on the 13th August, 20i6 at the Saint Augustine Anglican Church, Dansoman, Accra has broken down beyond reconciliation? 6 ANALYSIS OF THE RELEVANT SECTIONS OF THE MATRIMONIAL CAUSES ACT, 1971 (ACT 367) Before I deal with the issues, I now wish to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) namely sections 1 (2), 2 (1), and 2 (3). The only ground upon which a marriage may be dissolved is where the petitioner proves that the marriage has broken down beyond reconciliation. Section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367) provides thus: “The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation.” The grounds upon which a marriage would be said to have broken down beyond reconciliation are six (6) and the proof of one or more of them to the satisfaction of the Court may be a valid ground to the dissolution of the marriage. The six grounds are provided in section 2 (1) of the Matrimonial Causes Act, 1971 (Act 367). They are as follows: “2 (1) For the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one of the following facts: a. That the respondent has committed adultery and by reason of the adultery the petitioner finds it intolerable to live with the respondent; b. That the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent; c. That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition. d. That the parties to the marriage have not lived as husband and wife for a period of at least two years immediately preceding the presentation of 7 the petition and the respondent consents to the grant of a decree of divorce, provided that the consent shall not be unreasonably withheld, the Court may grant a petition for divorce under this paragraph despite the refusal; e. That the parties to the marriage have not lived as husband and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or f. That the parties to the marriage have, after diligent effort, been unable to reconcile their differences. Under section 2 (3) of the Matrimonial Causes Act, 1971 (Act 367): “Although the Court finds the existence of one or more of the facts specified in subsection (1), the Court shall not grant a petition for divorce unless it is satisfied, on all the evidence, that the marriage has broken down beyond reconciliation.” BURDEN ON THE PETITIONER It is a general principle of law that he who asserts must prove. This general principle has been given both statutory expressions at section, 10 (1) and (4) of the Evidence Act, 1975 (NRCD 323), and judicial pronouncements. In the case of Ababio v. Akwasi 111 (1995) 2 GBR 774, the Court held that: “The general principle of law is that it is the duty of the plaintiff to prove his case, i.e. he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of the case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins: if not he loses on that particular issue.” See also: Bisi v Tabiri [1987-1988] I GLR 360 8 Ackah v. Pergah Transport Limited & Others [2010] SCGLR 732. In a petition for divorce, the burden that is cast on a petitioner is to lead sufficient evidence to enable a finding of those facts in issue to be made in her favour as required by sections 10 and 14 of the Evidence Act, 1975 (NRCD 323). See: Dzaisu v Ghana Breweries Limited [2009] 6 GMJ 111 S.C Sections 11 (4) and 12 (1) of the Evidence Act, 1975 (NRCD 323) provides that the standard burden of proof in all civil matters is proof by the preponderance of probabilities and there is no exception to it except where the issue to be resolved in the civil suit borders on criminality such as fraud and forgery. The Supreme Court also in the case of Adwubeng v Domfeh [1996-97] SCGLR 660 unambiguously resolved the question of standard burden of proof. In the case of African Mining Services v Larbi [2010-2012] GLR 579, the Court held that the burden of persuasion in civil matters requires the person who has the evidential burden to discharge, to produce sufficient evidence such that a reasonable mind, such as this Court, will come to the conclusion that the existence of the fact is more probable. It is therefore the petitioner’s duty as required by law to produce the evidence of the facts in issue such that a reasonable mind, such as this Court, will come to the conclusion that from the existence of the facts, it is more probable that the marriage has broken down beyond reconciliation and that duty must be satisfactorily discharged. Furthermore, the ground upon which the petitioner herein seeks the dissolution of the marriage contracted between herself and the respondent is unreasonable behaviour by the respondent. Therefore, the onus is on her to lead cogent and credible evidence in proof of her allegation. ANALYSIS OF THE EVIDENCE ON RECORD ISSUE 9 Whether or not the marriage contracted between Adwoa Nsefuaba Eshun, the petitioner herein and Robert Amankwah, the respondent herein on the 13th August, 20i6 at the Saint Augustine Anglican Church, Dansoman, Accra has broken down beyond reconciliation? UNREASONABLE BEHAVIOUR BY THE RESPONDENT The petitioner in paragraph 7 of her Petition averred that the respondent has behaved unreasonably towards her in a way that she cannot reasonably be expected to live with him by: i. being an irresponsible husband to her and father to the issues of the marriage, ii. refusing to adequately provide for the maintenance and welfare of the children in Ghana and even in Canada, iii. getting verbally abusive every time she confronted him about his irresponsible behaviour, iv. being disrespectful towards her, v. insulting her in front of his friends and issues of the marriage, vi. being unconcerned about the wellbeing and paying no attention to her when she falls ill, vii. acting very cold towards her and barley communicating with her as husband and wife while they lived together and viii. assaulting her at the least provocation. Therefore the petitioner had the burden of leading cogent and credible evidence in proving the various acts of unreasonable behaviour against the respondent. The petitioner’s attorney also testified to the fact that the respondent has behaved unreasonably towards the petitioner that the petitioner cannot reasonably continue to live with him. It is the case of the petitioner’s attorney that even before the petitioner and the children joined the respondent in Canada, the respondent rarely 10 maintained the children in Ghana. According to the petitioner’s attorney, the petitioner believed that the situation would improve once she joined the respondent in Canada with the children. However, according to the petitioner, even after relocating to Canada with the children to live with the respondent, the respondent continued to be irresponsible and failed to provide adequately for the welfare and maintenance for the children. The petitioner’s attorney stated that on some occasions when the situation persisted for so long that the petitioner had to involve the law enforcement agencies to compel the respondent to cater for the needs of their children and the petitioner was greatly disturbed by the situation and confronted the respondent about his conduct on several occasions. It is also the case of the petitioner’s attorney that after sometime, the respondent became verbally abusive towards the petitioner, whenever she confronted him about his irresponsible behaviour towards herself and the children. The respondent on some occasions had also been highly disrespectful towards the petitioner and would insult her in front of their family and friends, and sometimes even in front of their children and also had no regard for her for the entire duration of the marriage and even when she fell ill. The petitioner’s attorney further stated that the parties barley communicate as husband and wife, as the respondent always acted cold towards the petitioner and on random occasions, he would argue with her over little things and would proceed to physically assault her at the least provocation. From the totality of the evidence on record, this court therefore finds as a fact that the respondent indeed had behaved unreasonably towards the petitioner by being irresponsible and failing to provide adequately for the welfare and maintenance for the children persistently that the law enforcement agencies had to compel him to cater for the needs of his own children, being verbally abusive towards the petitioner whenever she confronted him about his irresponsible behaviour towards herself and the children, been highly disrespectful towards the petitioner and insulting her in front of their family, friends and even in front of their children, 11 having no regard for the petitioner for the entire duration of the marriage even when she fell ill, barley communicating with the petitioner, always acting cold towards the petitioner and arguing with the petitioner over little things and physically assaulting the petitioner at the least provocation. As indicated supra, the respondent though duly served with the petitioner’s Petition, together with setting down cause for trial, witness statement of the petitioner’s attorney and hearing notices of which services were duly proved, did not enter appearance or file his Answer to the petitioner’s Petition. Neither did he appear in court to either give evidence or cross-examine the petitioner. This also goes to show that the respondent is indeed an unreasonable man. I must also confess that no woman, no matter how large her heart can pull along with a husband who is irresponsible and fails to provide adequately for the welfare and maintenance for the children persistently that the law enforcement agencies had to compel him to cater for the needs of his own children, verbally abuses her whenever she confronted him about his irresponsible behaviour towards her and the children, disrespects her and insults her in front of their family, friends and even in front of their children, has no regard for her for the entire duration of the marriage even when she fell ill, barley communicates with her, acts cold towards her and argues with her over little things and physically assaults her at the least provocation. The conduct of the respondent in the view of this court falls very far short of that of a reasonable man. From the totality of the evidence on record, I find as a fact that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to continue to live together with him. The petitioner proved her case by the preponderance of probabilities that the respondent has behaved unreasonably towards her in a way that she cannot reasonably be expected to live with him as 12 provided under section 2 (1) (b) of the Matrimonial Causes Act, 1971 (Act 367) and this court holds same. The next question to consider is the requirement of section 2 (3) of the Matrimonial Causes Act, 1971 (Act 367) whether the marriage between the Petitioner and the Respondent has broken down beyond reconciliation. On a proper construction of this sub-section of the act, the court can still refuse to grant a decree even when one or more of the facts set in section 2 (1) of the Matrimonial Causes Act, 1971 (Act 367) have been established. It is therefore incumbent upon a court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one party that the marriage has broken down will not be enough. See: Dictum of Bagnall J in the case of Ash v. Ash [1972] 1 ALL ER 582 at page 586. From the evidence on record, the parties to the marriage have not lived together as husband and wife for a period of two (2) years when the petitioner and the children vacated from the matrimonial home. All attempts to resolve the differences between the parties have proved futile. There is therefore no indication that the parties are prepared or willing to cooperate once again to find a solution to their differences. The court finds that the marriage has broken down and there is no hope or reconciliation at this stage as the petitioner’s attorney has told this court and it is better for this court to dissolve this marriage so that the parties can go their separate ways and be put out of their miseries. To insist that the petitioner and the respondent continue to live together as man and wife would be turning a contract of marriage into one of slavery regardless of the psychological and emotional trauma on the parties or one of them and allowing this marriage to strive on hopelessly, helplessly, and lack of trust. This is because matrimonial causes are unique because they involve two persons who are 13 physically, emotionally and spiritually involved with each other unlike other causes of action like land cases, contract, constitutional, chieftaincy etc. which do not involve intimacy between two people. No doubt the Bible declares the unique relationship as the two becoming one flesh. I cannot but agree with Osei-Hwere J (as he then was) in the case of Donkor v. Donkor (1982-83) GLR 1156 at page 1158 as follows: “The Matrimonial Causes Act (1971) Act 367 does not permit spouses married under the Ordinance to come to pray for dissolution of a marriage just for the asking. Where the court is satisfied from the conduct of the parties that the marriage has in truth and in fact broken down beyond reconciliation it cannot pretend and insist that they continue as man and wife. To do so would be turning a contract of marriage into one of slavery regardless of the psychological effect on the parties or one of them.” The court finds and holds that from the totality of the evidence on record together with the exhibit that, the marriage contracted between Adwoa Nsefuaba Eshun the petitioner herein and Robert Amankwah the respondent herein on the 13th August, 2016 at the Saint Augustine Anglican Church, Dansoman, Accra has broken down beyond reconciliation and the justification is that from the evidence the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with him. Thus, a prima facie case has been made by the petitioner that warrants the dissolution of the marriage. The requirements of section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367) has thus been met by the petitioner. I hereby declare the marriage contracted between Adwoa Nsefuaba Eshun, the petitioner herein and Robert Amankwah, the respondent herein on the 13th August, 20i6 at the Saint Augustine Anglican Church, Dansoman, Accra dissolved. The petitioner further prayed the court to grant her custody of the two (2) issues of the marriage with reasonable access to the respondent and an order for the respondent to maintain the issues of the marriage including but not limited to the 14 payment of their school fees and medical bills. From the evidence on record the parties and the two (2) issues live in Canada. The Court is not privy to the respective means of the parties, their present circumstances, whether the children are in a public or government school, how much is paid as school fees, the expenses incurred on the children within a month, whether they have health insurances or not. The court will therefore desist from making any pronouncement on the custody, payment of school fees and medical bills. The petitioner is advised to rather apply to a court in Canada for custody of the children, and for an order for the respondent to maintain the two (2) issues of the marriage, pay their school fees and medical bills. CONCLUSION 1. The marriage solemnized between Adwoa Nsefuaba Eshun, the petitioner herein and Robert Amankwah, the respondent herein on the 13th August, 2016 at the Saint Augustine Anglican Church, Dansoman, Accra is dissolved on the ground that it has broken down beyond reconciliation. 2. No order as to cost. COUNSEL: LINDA AMPOMAH ABOAH WITH ROSE KORANKYE FOR THE PETITIONER PRESENT PETITIONER’S LAWFUL ATTORNEY PRESENT RESPONDENT ABSENT (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) (CIRCUIT COURT JUDGE) 15 16